News From the Georgia State University Law Library

Criminal Background Checks: Georgia Law

by Zain Haq

Georgia’s New (ish) Expungement Laws

Compared to other states in the country, Georgia has some of the strictest laws regarding expungement of criminal records. Arrests resulting in convictions can only be taken off your criminal record in very limited circumstances. This makes it extremely difficult for people who have committed even minor crimes to gain access to housing, employment, and education. That being said, Georgia has taken some big steps toward ensuring that those with criminal records have some recourse. This article will give you a brief overview of what can and cannot be taken off a criminal record. Moral of the story is this: Do your best to keep your record clean, because Georgia law is not very forgiving!

Record Restriction (aka Expungement)

Georgia’s new law, effective July 1, 2013, does not use the word “expungement.” Instead, the process is now referred to as “record restriction.” Restriction does not mean that your records are deleted or destroyed, but rather that criminal history information maintained by the GCIC is unavailable for all purposes except law enforcement and criminal justice. The GCIC (Georgia Crime Information Center) is Georgia’s state entity that manages and disseminates criminal record information. Record restriction ONLY impacts those records maintained by the GCIC, and does not affect records maintained by the Clerk of Court (this process is referred to as sealing, which is discussed later in this article).

Georgia’s record restriction statute is O.C.G.A. 35-3-37(h). Automatic restriction usually only occurs if your arrest is not prosecuted. Generally, cases closed with no conviction qualify for restriction (including charges that are nolle prossed, dead docketed, and verdicts of not guilty).

It is important to note that while Georgia’s new restriction laws are a big step in the right direction, convictions still are not eligible for restriction (unless you are sentenced as a youthful offender or first offender, which is discussed below). This includes pleas of nolo contendere (no contest).

Restricting your record is only half the battle. Employers, housing authorities, and other interested parties do not usually go to the GCIC for criminal record information. Rather, they will go directly to the Clerk of Court to obtain court records. These records can only be disposed of by petitioning the court to “seal” the record.

Record Sealing

In order to seal your records and ensure that the Clerk of Court no longer disseminates information about your case, your records must first qualify for record restriction. O.C.G.A. 35-3-37(m) governs record sealing, and states that the petitioner must show the court that the harm suffered by the clerk’s record remaining public (denial of jobs, housing, licensing, etc.) outweighs the interest in the record being publicly available. Sealing your record is crucial to ensuring that arrests not resulting in a conviction are inaccessible by members of the public and other interested parties.

First Offenders

As previously stated, arrests resulting in convictions generally cannot be taken off your record. One exception to this is Georgia’s First Offender statute, 42-8-60 (also known as Georgia’s “second chance” law). If you are sentenced as a first offender and successfully complete your sentence, your record will not show a conviction, and your case will be sealed by an Order of Discharge. The intent of this law is to give first time offenders a second chance and allow them to move on with their lives without suffering the collateral consequences of a conviction.

To qualify as a first offender, you must have never been convicted of a felony in the past, and never have been sentenced as a first offender. Moreover, certain convictions preclude you from being sentenced as a first offender (DUI’s, serious violent felonies, sexual offenses, and child pornography charges). Receiving a First Offender sentence is not automatic. You or your attorney must ask the judge to be sentenced under the First Offender Act.

The sealing of your record pursuant to a first offender sentence is conditioned on your complying with the terms of your sentence. If you violate any of the terms of your sentence, or commit another crime, the judge can revoke your first offender status and convict you of the crime you were arrested for.

Youthful Offenders

The Youthful Offender law (O.C.G.A. 35-3-37) is another exception to Georgia’s rule against restriction of arrests that result in convictions. Certain misdemeanor convictions that occurred before you turned twenty-one years old qualify for restriction. To qualify as a youthful offender, you must successfully complete your sentence and you cannot have been charged with any other offense. There are a number of exceptions to the Youthful Offender law, mostly for serious traffic offenses and sex crimes.

Pardons

Lastly, pardons provide a method for those convicted of a felony to minimize the collateral consequences they face as a result of their conviction. While a pardon does not take a conviction off of your record, it is an order of official forgiveness from the State, and may help in receiving employment, housing, licensing, etc. Pardons are granted by the State Board of Pardons and Paroles. In Georgia, less than 40% of pardon applications are approved.

To sum it all up…

Georgia has made some big changes to help those who arrested receive a second shot without suffering the severe consequences that come with having a criminal record. Unfortunately, those with convictions on their record are still facing an uphill battle when it comes to finding jobs, housing, licensing, and educational opportunities. While a good amount of progress has been made, there is still a long way to go.